J. F. WILKERSON CONTRACTING COMPANY, INC.
v.
R. T. ROWLAND et al.
No. 7610SC53.
Court of Appeals of North Carolina.
June 16, 1976.*842 Manning, Fulton & Skinner by Lawrence W. Hill, Jr., Raleigh, for plaintiff-appellant.
Poyner, Geraghty, Hartsfield & Townsend by John L. Shaw and Cecil W. Harrison, Jr., Raleigh, for defendants-appellees, J. H. Pearson, Trustee for the Northwestern Bank and Northwestern Bank.
CLARK, Judge.
The judgment on the pleadings disposed of fewer than all the claims, but this appeal is not subject to dismissal under G.S. 1A-1, Rule 54(b) since the trial court in the judgment found "no just reason for delay".
In its judgment on the pleadings the trial court made findings of fact and conclusions of law. The court is not required to find facts in a judgment on the pleadings since the facts determining disposition are those alleged in the pleadings; and the court cannot select some of the alleged facts as a basis for granting the motion on the pleadings if other allegations, together with the selected facts, establish material issues of fact. "A motion for judgment on the pleadings pursuant to G.S. § 1A-1, Rule 12(c) should not be granted unless `the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.'" Trust Co. v. Elzey, 26 N.C.App. 29, 32, 214 S.E.2d 800, 802 (1975). See Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974).
The findings of fact and conclusions of law in the judgment appealed from do disclose the basis for the ruling of the court, which concluded in part as follows:
"1. The June, 1973 oral contract was a separate and independent contract from the written contract dated November 27, 1973 and executed on January 1, 1974.
2. The June, 1973 oral contract was terminated upon breach of the contract in August, 1973."
Having so found, the trial court further concluded that plaintiff's claim of lien for labor and materials furnished under the oral contract was not filed within 120 days as required by G.S. 44A-12(b); and that the labor and materials furnished under the written contract of 27 November 1973 did not precede the date of the Bank deed of trust dated and recorded 2 October 1973.
The movants take the position that though plaintiff attempts to allege the furnishing of work and materials under a single contract with defendants Rowland, its pleadings establish two distinct and separate contracts as a matter of law, in that (1) the first oral contract was terminated on 3 August when plaintiff stopped work upon its breach by defendant R. T. Rowland, and (2) since plaintiff does not allege that defendant R. T. Rowland was also the agent of his wife in making the oral contract, the written contract executed by both of said defendants was a substitution for and independent of the oral contract.
The plaintiff alleged that when defendant R. T. Rowland breached the oral contract by failing to execute with his wife the written contract and by failing to make periodic payments within a reasonable time, it elected to delay the work until said defendant complied. If one or more installments provided for in a building contract are not paid, the builder will generally be privileged to suspend performance. 3A Corbin, Contracts, § 693 (Rev.Ed.1960). "Although a builder may be privileged to suspend work, or even to renounce the contract, by reason of the non-payment of an installment, he is not required by the law to do either one." 3A Corbin, supra, § 692.
In the case before us plaintiff, as it had the right to do elected to delay, but not abandon and terminate its work under the contract, and in so doing the contract was not terminated.
The plaintiff does not specifically allege that in making the oral contract the defendant R. T. Rowland was also the agent for his wife Ima Jean Rowland, but we find the allegations sufficient to imply such agency. In Marks v. McLeod, 203 N.C. 257, 165 S.E. 693 (1932), the defendant-husband signed a contract to sell timber to plaintiff. Title to the timber was vested in his wife. Subsequently, both husband and *843 wife executed a timber deed. It was held "that [the husband] was acting as agent of his wife in signing the contract of sale may be presumed from the subsequent ratification of the deed in accordance with the prior agreement."
Whether the written contract executed by defendants Rowland was a ratification of or a substitution for the oral contract made by defendant R. T. Rowland is a mixed question of fact and law which is not determined by the pleadings in this case.
Having carefully scrutinized the motion for judgment on the pleadings, we find that movants have failed to show that no material issue of fact exists and that they are clearly entitled to judgment.
The judgment is
Reversed and this cause Remanded.
BROCK, C.J., and HEDRICK, J., concur.